Ilankai Tamil Sangam

23rd Year on the Web

Association of Tamils of Sri Lanka in the USA

Section 29 and the 1972 Constituent Assembly

by Wakeley Paul, Esq. B.A. {Cantab} [Law] Cambridge University, England, LL.M.. Stanford Law School, California, Barrister at Law, Middle Temple, London, Retired Attorney at Law, New Jersey, USA, Former Crown Counsel, Ceylon

Why this use of a Constituent Assembly, whose right to exist, leave alone pass laws or replace the existing Constitution with a new one, was not recognized by the only existing legal Constitution at the time, which was the Soulbury Constitution?

The Editor
Morning Leader,

      Mr Sarath de Alwis’s assertion that the 1972 Constitution was legal because the coalition which was elected to create a Constituent Assembly won by a 2/3 majority is without foundation. The fact that the Federa Party partook in the debate involving the Assembly's creation without protest does not make it legal either.

      The proper procedure would have been for the 2/3 majority to have abolished the Soulbury Constitution and replaced with a new one in Parliament, Why then, one asks, did they not do so? Why this use of a Constituent Assembly, whose right to exist, leave alone pass laws or replace the existing Constitution with a new one, was not recognized by the only existing legal Constitution at the time, which was the Soulbury Constitution?

The answer is simple. Parliament could not abolish Section 29 [2], which protected minorities from  the tyranny of the majority. 

This restriction was decided by the Privy Council in  Bribery Commissioner v Ranasinghe [1966] 2 All England Reports 785, which deemed Section 29 [2] to be such an integral condition of the grant of Independence that this provision  alone could not be abolished or amended even by a 2/3 majority, as it was an entrenched and unalterable provision of the Constitution.

It was the ruling coalition's desire to illegally eliminate the  protections of Section 29 [2] that motivated them to adopt the illegal procedure of using a Constituent Assembly to legitimize the 1972 Constitution.